RULE 52. HARMLESS ERROR AND OBVIOUS ERROR

Rule 52 was amended, effective March 1, 2006.

Rule 52 is adapted from Fed.R.Crim.P. 52 and differs only in the substitution of the word "obvious" error for "plain" error. This rule applies to both the trial courts and the appellate courts. If the initial action of the trial court was correct, Rule 52 has no application. If, however, the original action was incorrect, three types of error may be assigned for review by the appellate court. These are: (1) harmless error or error not prejudicial to the defendant; (2) reversible error or error that was prejudicial and to which objection was made in the trial court; and (3) obvious error or error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.

Subdivision (a) provides that any error, defect, irregularity or variance that does not affect substantial rights of an accused must be disregarded. To determine whether error affecting substantial rights of the defendant has been committed, the entire record must be considered and the probable effect of the error determined in the light of all the evidence. Generally speaking, however, an error of constitutional dimensions is more likely to be found prejudicial than ordinary errors. Before a federal constitutional error may be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Generally, it may be said that the defendant has the burden of showing that a technical error has affected his substantial rights, but that if the error was fundamental, or of such a character as would normally prejudice substantial rights, the burden is on the prosecution to demonstrate its harmlessness.

Subdivision (b) provides that obvious errors affecting substantial rights may be noticed even though they were not brought to the attention of the court. But the power to notice obvious error, whether at the request of counsel or on the court's own motion, is one the courts should exercise cautiously and only in exceptional circumstances. The power should be exercised only where a serious injustice has been done to the defendant.

Rule 52 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, pages 10-11; February 20-23, 1973, page 11; December 10-12, 1970, pages 15-17; Fed.R.Crim.P. 52.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. § 29-28-26.

CROSS REFERENCE: N.D.R.Civ.P. 61 (Harmless Error).